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Zapata v. Commonwealth

Supreme Court of Kentucky

April 27, 2017

STEVEN ZAPATA APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCH PERRY, JUDGE NO. 13-CR-002075

         VACATING AND REMANDING.

          COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Daryl Havey Assistant Attorney General.

          OPINION

          WRIGHT JUSTICE.

         Appellant, Steven Zapata, entered a plea under North Carolina v. Alford, 400 U.S. 25, 91 (1970), to one count of murder. In accordance with the plea agreement, the trial court sentenced Zapata to 24 years' imprisonment. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), and argues that the "trial court erred by resolving an involuntary plea issue without taking evidence and without appointing conflict-free counsel."

         I. BACKGROUND

         A Jefferson County Grand Jury indicted Zapata on one count of murder for his wife's death. Before trial, he made a motion under Faretta v. California, 422 U.S. 806 (1975), to be appointed as "co-counsel" in order to "assist his [counsel] in his defense."[1] The trial court granted Zapata's request to act as hybrid counsel.

         Before trial, Zapata entered an Alford plea to one count of murder. "Due process requires a trial court to make an affirmative showing, on the record, that a guilty plea is voluntary and intelligent before it may be accepted." Edmonds v. Commonwealth, 189 S.W.3d 558, 565 (Ky. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 241-42 (1969)). The trial court conducted the Boykin colloquy and explained that Zapata was waiving the right to challenge the evidence, cross-examine witnesses, and offer evidence in his defense. The court instructed Zapata that if he entered a guilty plea, "the case is over" and he could not appeal. Zapata agreed that the Commonwealth had evidence to prove that he had killed his wife and went ahead with the plea.

         However, before sentencing, Zapata's counsel submitted a motion to withdraw that plea, though she indicated "undersigned counsel takes no position on this motion." Zapata filed another motion to withdraw his plea and for an evidentiary hearing under Edmonds. He asserted an evidentiary hearing "is required when, as here, a defendant makes an allegation of ineffective assistance of counsel that cannot be resolved from referral to the record." At the hearing on the motion, Zapata argued, among other things, that his counsel deceived him when she informed him he could withdraw his plea any time before sentencing with "no problem" and that his plea was not voluntarily entered. The trial court conducted a hearing on the motion; however, it did not take sworn testimony or allow Zapata to call witnesses or present other evidence.

         II. ANALYSIS

         Zapata argues that he was denied counsel concerning his motion to withdraw his guilty plea. As the United States Supreme Court held, "a trial is unfair if the accused is denied counsel at a critical stage of his trial." United States v. Cronic, 466 U.S. 648, 659 (1984). This Court recently held that "a pre-judgment proceeding at which a defendant seeks to withdraw his guilty plea is a critical stage of the proceedings at which he is entitled to the assistance of counsel." Commonwealth v. Tigue, 459 S.W.3d 372, 382 (Ky. 2015). Furthermore, "prejudice is presumed when counsel is burdened by an actual conflict of interest, " Strickland v. Washington, 466 U.S. 668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 335, 345-350 (1980)).

         Zapata's trial counsel did prepare a motion for him to withdraw his plea and was present at the hearing on that motion. However, she stated that Zapata's allegations toward her concerning the guilty plea put her in an awkward position. However, she pointed the trial court to this Court's decision in Tigue, 459 S.W.3d at 389, and insisted her client had a right to representation. She did note that she was unsure of how the fact that Zapata was acting as hybrid counsel complicated the matter. Counsel indicated that she would only answer the questions the trial court ordered her to answer, but "in the interest of representing him" it was "not prudent to offer responses to those accusations." When the trial court told the parties they should brief the issue, Zapata's counsel declined.

         The trial court determined that, while Zapata had the right to a lawyer at a motion to withdraw a guilty plea, his current counsel fulfilled that role. When Zapata's counsel asked the trial court if she could "effectively do that . . . under the circumstances, " the court stated that Zapata was representing himself "at least in part." Therefore, the trial court proceeded with the hearing on the motion to withdraw the plea. Zapata did not ask for substitute counsel due to his current counsel's conflict. ...


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